Tobacco and free speech

The test of a society's commitment to freedom comes when it involves the rights of the unpopular. Not many people are less popular than the tobacco companies, which are regarded as shameless merchants of death. But a federal appeals court says their low status doesn't deprive them of First Amendment protection.

The Food and Drug Administration isn't satisfied to make cigarette companies warn consumers of the health risks of smoking. It also decided to force them to adorn their packages with large images of corpses and diseased lungs to hammer the point home.

In a 2-1 ruling today, though, the court said the mandate was unconstitutional. If the government is going to restrict commercial speech, which has less protection than political speech, it has to show that the requirement will actually do some good. The court said, "The FDA has not provided a shred of evidence . . .that the graphic warnings will directly advance its interest in reducing the number of Americans who smoke."

In fact, the experience of other countries that have tried this approach is that smoking rates fall no faster afterward than before. Apparently it's not lack of information that causes people to light up. And torching the First Amendment is not the way to deter them.